State v. Baker, 39093

• Decision Date: 05 July 1968
• Docket Number: No. 39093,39093
• Parties: STATE of Minnesota, Respondent, v. James Wilburt BAKER, Appellant.
• Court: Minnesota Supreme Court

Page 240

160 N.W.2d 240

280 Minn. 518

STATE of Minnesota, Respondent, v. James Wilburt BAKER, Appellant.

No. 39093.

Supreme Court of Minnesota.

July 5, 1968.

Syllabus by the Court

1. It is a general rule that the legal excuse of self-defense is available only to those who act honestly and in good faith. The rule requires (1) the absence of aggression or provocation on the part of the person charged with committing the assault; (2) the actual and honest belief of the assaulting party that he was in imminent danger of death, great bodily harm, or some felony and it was necessary to take the action he did; (3) the existence of reasonable grounds for such belief; and (4) the duty of the party charged with committing the assault to retreat or avoid the danger if reasonably possible. The principles of self-defense in felonious assault and homicide cases are not materially different.

2. Where a party has not retreated from or attempted to shun the combat, but has, as in this case, unnecessarily entered into it, his act is not one of self-defense.

3. The evidence amply sustains the conviction of second-degree assault.

4. The state may outline the facts in the opening statement which it expects to prove and if the facts are stated in good faith with reasonable grounds to believe that the evidence to be offered in proof of such facts is admissible, no error is committed. The state also has the right to attempt to prove its theory of the case.

5. Where defendant argued that the prosecutor had been guilty of misconduct in his final argument, but the settled case does not contain the final argument and such misconduct is denied on appeal by counsel against whom it was claimed, this court is unable to make a ruling concerning the matter, since we are bound by the settled case.

6. Defendant's complaint that the court in its instructions failed to define the word 'dangerous' is not before this court since defendant did not in any manner object to that aspect of the charge and did not request a definition of the term.

C. Paul Jones, Public Defender, Murray L. Galinson and Robert E. Oliphant, Asst. Public Defenders, Minneapolis, for appellant.

Douglas M. Head, Atty. Gen., St. Paul, George M. Scott, County Atty., Henry McCarr, J., Minneapolis, for respondent.

Heard before KNUTSON, C.J., and NELSON, MURPHY, OTIS, and FRANK T. GALLAGHER, JJ.

OPINION

NELSON, Justice.

Defendant was found guilty of second-degree assault following a jury trial in Hennepin County District Court and was sentenced to imprisonment for a term not to exceed 5 years. He appears from the judgment of conviction and from an order denying his motion for a new trial. The appeal was dismissed on motion July 11, 1966, for lack of prosecution but was reinstated on motion of the public defender July 6, 1967. Defendant seeks to vacate the judgment of conviction and to have the case remanded for a new trial.

The facts are as follows: On November 4, 1962, James Roberts, after attending a party which had lasted from 2 a.m. until 5 a.m., stopped at Cicero's Old Southern Barbecue, an all-night restaurant in Minneapolis, at 6 a.m. While at the restaurant Roberts met Hughella, 'Candy,' Edwards. Roberts, Miss Edwards, and a third man went to a residence and after about 15 minutes the trio left and Roberts dropped Miss Edwards and the other man off at another address, returning to Cicero's where he was supposed to meet Miss Edwards at a later time.

After Roberts left Miss Edwards, she went to defendant's apartment, awakened him, and asked him to drive her to Cicero's. Defendant and Miss Edwards arrived at Cicero's about 8 a.m. Roberts was parked across the street when defendant and Miss Edwards arrived. Roberts approached them and asked Miss Edwards what she was doing with defendant. Defendant told Roberts it was none of his business and Roberts told defendant that since he had given Miss Edwards $10 he felt that it was his business. The two men exchanged uncomplimentary remarks and then 'squared off' for a fist fight. Roberts apparently got in the first punch and was getting the better of defendant as a result of two wellplaced kicks to defendant's groin which sent defendant to his knees. Defendant was bigger than Roberts and had had experience in fighting in the Golden Gloves tournament, but after the second kick to the groin sent him to his knees, defendant removed a 5-inch-blade hunting knife from his pocket.

At this point the testimony appears to be in conflict. Defendant claims that Roberts attempted to take the knife away from him and in the ensuing struggle defendant stabbed Roberts in the back. Roberts claims that when he saw the knife he chose the discreet route and retired from the field of battle. Roberts claims he started running for his car but that defendant caught him and stabbed him in the back.

Mrs. Louise Jones observed the incident and testified that the trial that the two men were moving toward Roberts' car and struggling as if one were trying to break away from the other and that when the two men reached the car, Roberts fell on the back end of it.

The doctor who examined Roberts testified that Roberts had two wounds in his back. One was superficial and near the neck, and the second was in the middle of the back to the left of the spine. The second would was quite deep and had collapsed Roberts' left lung. The doctor described Roberts' condition as critical.

Defendant was arrested and charged with second-degree assault. At trial defendant's theory was that he stabbed Roberts in self-defense. The jury returned a verdict of guilty of second-degree assault.

The issues appear to be as follows: (1) Did the court properly instruct the jury on self-defense? (2) Does the evidence support the verdict? (3) Was defendant's right to a fair trial prejudiced by certain statements of the prosecution?

1--2. Defendant requested the court to instruct the jury that in exercising his right of self-defense he was not required to retreat but could stand his ground or even pursue his attacker if it appeared reasonably necessary, and that he could do so even though he might more easily have gained safety by retreating. Defendant's request, however, is not in accord with the law of self-defense as set out in State v Johnson, 277 Minn. 368, 373, 152 N.W.2d 529, 532:

'It is a general rule that the legal excuse of self-defense is available only to those who act honestly and in good faith. The rule requires (1) the absence of aggression or provocation on the part of the slayer; (2) the actual and honest belief of the slayer that he was in imminent danger of death, great bodily harm, or some felony and it was necessary to take the action he did; (3) the existence of reasonable grounds for such belief; and (4) The duty of the slayer to retreat or avoid the danger if reasonable possible.' (Italics supplied.)

If defendant's requested instruction is viewed in the light of the rule stated in the Johnson case, it becomes clear that the court properly refused to instruct the jury that defendant had no duty to retreat or to avoid the danger if reasonably possible.

After reading Minn.St.1961, §§ 619.40(3) and 610.05, pertaining to self- defense, the court instructed the jury in part as follows:

'* * * The defendant in this case claims that his acts here were justified because they were made in self-defense. In this case you must decide whether or not Mr. Roberts performed the acts claimed by the defendant, and must then determine whether or not the defendant had reasonable ground to believe that the acts of Mr. Roberts were dangerous to himself. If you find that the defendant had reasonable ground to believe that the acts of Mr. Roberts were dangeruos to himself then you must decide whether or not the force used by the defendant to repel any assault, if you find any, was necessary, and whether or not the amount of force used by the defendant was required under the facts as disclosed by the evidence. You are instructed that no burden rests upon the defendant to prove his acts were justifiable, because in self-defense, but to find the defendant guilty you must be satisfied beyond a reasonable doubt that his acts were not justifiable on such ground. You will note that actual danger is not necessary to justify self-defense. If one is confronted with the appearance of peril which arouses in his mind, as a reasonable person, an honest conviction and fear that he is about to suffer death or great bodily harm, and if a reasonable man in a like situation, seeing and knowing the same facts would be justified in believing himself in like danger, and if a person so confronted acts in self-defense upon such appearances through such fear and honest convictions, his right of self-defense is the same whether such danger is real or merely appearance.'

When the facts of the case are viewed in the light of the rule set out in the Johnson decision, the court was eminently fair to defendant in its instruction. It properly placed the burden of proving the lack of justification on the state; informed the jury that defendant could use reasonable means to protect himself; and explained that the threat to defendant need not be actual if defendant reasonably believed that it existed. The court did not tell the jury that defendant had a duty to retreat if possible, as set out in Johnson.

Defendant argues that one who has been attacked may not only 'stand his ground' but may also pursue his assailant even though the person attacked might more easily have gained safety by withdrawing from the scene. The state argues that defendant's insistence that this 'self-proclaimed license for mayhem is Minnesota law' has recently been rejected by this court in State v. Johnson, supra. The Johnson case was a manslaughter case, but the principles of self-defense in felonious assault and homicide cases are not materially different. See, State v. Spencer (Mo.) 307 S.W.2d 440, 443.

This court in...